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Manufacturing Consent: Estelle B. Freedman’s “Redefining Rape”

IN SEPTEMBER 2011, the FBI released its 82nd annual Uniform Crime Report (UCR). Up to this point, the agency had only counted one very specific type of rape in the UCR: rapes of females by vaginal intercourse committed by males through the use of force. It did not count rape of men or boys. It did not count rapes of transgender people. It did not count assaults involving forced anal or oral sex. Frequently, it did not count rapes in which victims were unconscious or unable to consent because of physical or mental disabilities, or assaults in which drugs or alcohol were used to inhibit the victim’s capacity to resist.

This was because, since 1929, the FBI had counted in the UCR only “forcible rapes,” defined as “the carnal knowledge of a female, forcibly and against her will.” That definition, which has its origin in British common law, doesn’t square with how most Americans think of rape today. But the distinction between “forcible rape” and regular rape became a topic of national conversation in 2011 when House Republicans introduced the No Taxpayer Funding for Abortion Act. Even though federal funding of abortion is already illegal, with the exception of victims of rape or incest, H.R.3 sought to further limit that coverage to victims of “forcible rape” alone.

At that time I was working at Ms. magazine, where news that Republicans were going after the reproductive rights of rape victims was at once enraging and viewed as completely predictable. Being the flagship publication of institutional feminism published by second-wavers in Washington often meant sounding like a broken record that very few people can hear. But for some reason, this time, when the House GOP tried to redefine rape at the expense of victims in need of abortions, everyone paid attention. The Daily Show devoted a full segment to ridiculing H.R.3’s forcible rape distinction. Extensive news coverage of the bill helped gin up so much backlash that H.R.3’s sponsor was forced to change the language before the bill could come up for a vote. Forcible rape was out of the bill, but the public outrage over the notion that some rapes are more important than others was still strong.

Capitalizing on the media attention to the HR3 debacle, Ms. and our publisher, the Feminist Majority Foundation, launched the “Rape is Rape” campaign, petitioning the FBI to update the archaic “forcible rape” definition to a more inclusive one. The campaign consisted of a series of reports on the definition as well as a Change.org petition — the most popular in the site’s history at the time — which earned over 160,000 signatures. Within eight months, the public pressure coupled with the lobbying efforts of a number of feminist organizations in Washington forced the FBI to do what it hadn’t done in 84 years: change the definition of rape.

The evolution of how rape has been defined in the United States is the subject of the historian Estelle B. Freedman’s Redefining Rape: Sexual Violence in the Era of Suffrage and Segregation. In this book, Freedman tells the story of the many disparate social movements whose efforts brought about changes in the social and legal constructions of rape from the end of the Civil War until the early 20th century. Not unlike the “Rape is Rape” campaign, most efforts to redefine rape throughout the country’s history have relied on both long-term organizing and unpredictable shifts in the political climate. The impact of anti-rape activism, like that of all movements for social change, is influenced by the fickle public attention span. The FBI’s decision to discard the category of “forcible rape” in favor of a more inclusive definition of assault was a big victory, but it went largely unnoticed by the public. Getting people to sign on was easy, but getting the media to cover an esoteric definitional change by a bureaucratic agency was a struggle. Despite the substantive policy victory the campaign achieved, the big story of rape activism in 2011 had nothing to do with the UCR. By the time the Ms. cover story on “Rape is Rape” was released, everybody was already talking about SlutWalk.

The same week Republicans in Washington introduced H.R.3, a Toronto police officer came under fire after telling a University safety forum that, in order to prevent rape, “women should avoid dressing like sluts.” Thus, SlutWalk was born. The first march was held in Toronto as a demonstration against the rape culture and victim blaming exemplified by the officer’s remarks. Organizers promoted the idea of reclaiming the label “slut” and encouraged women to come dressed like one, the point being that an outfit is not an invitation. Naturally, the media couldn’t ignore women dressed in underwear and high heels marching in the streets.

As SlutWalks started popping up in more cities, controversy over the merits of the approach grew. The marches touched on long-standing divisions among feminists about sexuality, and that’s what dominated much of the debate in the mainstream media. Was SlutWalk’s guaranteed-to-get-noticed approach worth the risk that the message would get lost amid the images of the woman on a mobile stripper pole? Was it a symptom of the pornification of our culture, or a realization of sex-positivity that had previously been estrangedfrom the movement work? Was this the future of feminism, or the end of it? There was no shortage of commentary about what to make of SlutWalk in mainstream and alternative spaces during its heyday. But one thing some white feminists seemed not so eager to discuss was SlutWalk’s race problem.

From the beginning, many women of color took issue with SlutWalk, pointing out, among other things, the racial privilege required to reclaim the word. Many objections were described in “An Open Letter From Black Women to the SlutWalk,” first published on the website Black Women’s Blueprint in September 2011 and subsequently reprinted on the Huffington Post and elsewhere:

As Black women and girls we find no space in SlutWalk, no space for participation and to unequivocally denounce rape and sexual assault as we have experienced it. … Much of this is tied to our particular history. In the United States, where slavery constructed Black female sexualities, Jim Crow kidnappings, rape and lynchings, gender misrepresentations, and more recently, where the Black female immigrant struggle combine, “slut” has different associations for Black women. We do not recognize ourselves nor do we see our lived experiences reflected within SlutWalk and especially not in its brand and its label. … Although we understand the valid impetus behind the use of the word “slut” as language to frame and brand an anti-rape movement, we are gravely concerned.

Perhaps more than any other recent cultural phenomenon, SlutWalk revealed the utter ignorance on the part of many young white feminists of the history of rape as a tool of white supremacy. It is that history, the one that was explained over and over again by women of color in criticisms of SlutWalk, that Freedman lays out in her Redefining Rape. For anyone not already familiar with how we got here, this book is an excellent place to start.

¤

Freedman’s thesis is a simple one: throughout the history of the term “rape,” its changing definition has been inextricably bound to changing definitions of citizenship. She traces the evolution of rape as a social and political concept from the end of the Civil War to the mid-20th century. Through historical records, court transcripts, and newspaper archives, Freedman shows how, since the country’s founding, ideas about sexual violence have traditionally been informed — and enforced — by and for a ruling class of white men. She also outlines the history of anti-rape movements that challenged white supremacy and male supremacy. The presentation of these disparate movements, which were often at odds with one another despite having seemingly similar goals, is among the most fascinating aspects of Freedman’s narrative.

Redefining Rape begins with the colonial period, when rape was defined according to British common law, as we have seen, as “unlawful and carnal knowledge of a Woman, by Force and against her will.” Husbands were excluded from the class of potential rapists, as married women were not permitted to retract their “matrimonial consent.” The issue of consent, Freedman points out, was fundamental to not only rape, but to the fight for full citizenship and equality undertaken by both the feminist and the racial justice movements. At the country’s inception, white women and people of color alike were excluded from the rights of citizenship. Coverture, which came from British common law, meant that married white women were the subjects of their husbands and had no right to withdraw sexual consent. And enslaved women had no ability to refuse sex with anyone.

In spite of this, rape laws in both Europe and the colonies in the 17th and 18th centuries were quite harsh. Rape was a capital offense in both northern and southern colonies. However, conviction rates were relatively low. Sexual norms at the time were influenced by narratives of conquest and empire which normalized sexual violence. A widespread belief that women desired aggressive sex made proving the two key elements of rape — lack of consent and the use of force — difficult. Not surprisingly, in the rape cases that were prosecuted, white men were much less likely to be convicted than men of color.

And while white women of European descent often had trouble proving the use of force and lack of consent required to win a conviction for rape, non-white women usually couldn’t bring charges at all. Throughout U.S. history, definitions of citizenship have allowed white men to assault Native American women with impunity. Indigenous women were treated as the “spoils of war” by European soldiers. White miners in California in the 19th century raped native women with the knowledge that there would likely be no recourse — according to California law, the testimony of an Indian person was insufficient to convict a white person. General George Armstrong Custer gave his soldiers permission to “avail themselves of the services of a captured squaw,” as he himself did, after winning a battle against the Cheyenne.

Like native women, enslaved black women had no legal standing to bring rape charges. Forced breeding with male slaves was standard practice in the antebellum South, as was rape at the hands of slave owners. (In fact, Freedman points out that some owners bought female slaves explicitly for sexual labor.) And rape among slaves was largely ignored. Freedman cites a lawyer who wrote at the time that, “The violation of the person of a female slave, carries with it no other punishment than the damages which the master may recover for the trespass on his property.”

One of Freedman’s main focuses in the book is the role the South played in redefining rape for the entire country beginning in the late 19th century, when a new definition of rape began to take root, shaped by the Southern beliefs that black women could not be raped and that black men threatened white female virtue. After Reconstruction, both the cultural and legal conceptions of rape came to implicitly assume a chaste white female victim assaulted by a nonwhite male. This racialized definition of rape became the foundation for a new infrastructure of white supremacy in the South, implemented through lynching and segregation.

In May 1919, W.E.B. Du Bois described the process of reestablishing white supremacy after slavery this way:

The charge of rape against colored Americans was invented by the white South after Reconstruction to excuse mob violence… After the war, when murder and mob violence was the recognized method of re-enslaving blacks, it was discovered that it was only necessary to add the charge of rape to justify before the North and Europe.

Indeed, Freedman points out that the rape panic of the 1880s was a departure from antebellum attitudes among whites, when insurrection among blacks was a far greater concern than rape. But as African Americans started to gain civil rights and economic mobility, southern whites’ dominance was threatened. Violent mobs often targeted black men who were becoming upwardly mobile or politically active with lynching, using false rape accusations as justification. Fears of rape, which became known as “The Negro Crime,” were also fueled by a desire to preserve “racial purity.” Eventually even consensual interracial relations between black men and white women were redefined as rape by Southern white authorities — a reminder that a white woman’s “consent” was not really hers to give.

At the same time, black women remained frequent targets of sexual violence. After emancipation, the notion that black women lacked the virtue of white women and therefore were acceptable sexual outlets for white men persisted. Moreover, Freedman suggests, sexual assault of black women by white men in the era of lynching and segregation was a means of further undermining black men’s status in the patriarchy as protectors of their sisters, daughters, and wives.

The narrative of the black rapist, first popularized by white vigilantes, quickly infiltrated mainstream politics. Southern politicians found it a useful tool for justifying policies of segregation and disenfranchisement. Southern Democrats warned that if black men were permitted to enter civil society they would gain sexual access to white women. Democratic candidates successfully ran for office on pro-lynching platforms based on the defense of white womanhood. And once elected, Freedman notes, they instituted policies that perpetuated that framework, “install[ing] sheriffs and a judiciary that viewed black men as sexual predators, black women as inherently immoral, and white women as in need of protection.” The construct soon permeated national politics. Despite his opposition to the practice of lynching, President Roosevelt attributed it to “the perpetuation, especially by black men, of the hideous crime of rape” in his 1906 State of the Union address.

It was in this climate of escalating racial violence, where white supremacist views of rape infused the criminal justice system, that one of many social movements challenging the established definition of rape emerged. Against all odds, African American women in the post-emancipation South began to assert their newly granted rights of citizenship by reporting their rapes. Through black press accounts from the era, Freedman presents the “uphill battle against white male sexual privilege” that African American women undertook as part of a larger effort to exercise the rights of citizenship. “Their efforts revealed the centrality of sexuality, along with economic opportunity and political rights, to achieving the goal of full citizenship after emancipation,” she writes.

The effort to redefine black women as potential rape victims was always a direct challenge to white supremacy. The rape of black women by white men reinforced the construct of black immorality, one that held black women to be unconditionally promiscuous and unfit for participation in civil society. “Among the many things that have transpired to dishearten the Negroes in their effort to attain a level in the status of civilized races,” the black journalist and activist Ida B. Wells wrote in 1886, “has been the wholesale contemptuous defamation of their women.” Freedman makes it clear that the object of early critics like Wells was to extend the prize of respectability and purity to black women as well as white. This was in conflict with the dominant white supremacist norms of the time, which excluded all African Americans from the realm of respectability. Southern white women participated in demeaning black women’s morality alongside white men. In a letter to the editor of the Independent, a New York-based magazine, the celebrated Georgia novelist Corra White Harris launched her writing career with a response to an editorial condemning a lynching. Her defense of the lynching was titled “A Southern Woman’s View.” “On this account I venture to inform you of facts which do not mitigate the atrocious conduct of the Newnan mob, but which do explain its savage fury,” Harris wrote:

The pioneer in colonial days protected his wife and child from the wild beasts with his gun and knife; but to-day in the South every white woman lives next door to a savage brute who grows more intelligent and more insolent in his outrages every year, against whom the dilettante laws of Georgia and other Southern States offer no protection… Nothing can be more truly said of the ordinary negro than that he is a spiritual hypocrite. The most prominent women in their religious enthusiasms are oftenest public prostitutes. Only yesterday I passed one of the “preaching” to a crowd of men on a street corner, and I assure you her ethics were high, while her gestures were lewd and blasphemous. Out of this cesspool of vice rises that hideous monster, a possible menace to every home in the South. He has the savage nature and the murderous instincts of the wild beast, plus the cunning and lust of a fiend… To him liberty has always meant license of one sort or another. Is it any wonder North Carolina, Mississippi and Louisiana have passed laws virtually disfranchising him?

Clearly Harris, whose novels included A Circuit Rider’s Wife and In Search of a Husband, was no crusader for equality. But Freedman offers many examples of conflict between white and black women within reform movements of the time. While white supremacy was thriving in the South, white women across the United States had been organizing for equal rights during what would become known as the first-wave feminist period. Women’s clubs provided a setting for advocates of women’s suffrage, expanded rights for women and temperance to develop and promote new ideas about morality and gender justice. These racially-exclusive groups largely saw rape as a problem caused by gender inequality and the exclusion of women from the full rights of citizenship (and in the case of temperance advocates, the degradation of morality caused by alcohol consumption). Morality — specifically, Christian morality — and respectability were central to the mainstream women’s movement of the Victorian era, and the dominant white supremacist notion of the time excluding black women from the realm of respectability was a major barrier to inclusion.

The quest for sexual respectability among black women helped give rise to the black women’s club movement of the 1890s. Inspired by anti-lynching activists like Ida B. Wells, middle class black women in the North formed civic groups and honed a strategy to counter the popular stereotypes of black women as promiscuous, and organized anti-lynching and pro-suffrage campaigns. But conflict arose when these groups attempted to ally with white women’s rights activists. Freedman describes the failed attempt to integrate the pro-suffrage Women’s Christian Temperance Union, which condemned domestic and sexual violence within the popular temperance framework:

The public conflict between Ida B. Wells and WTCU president Frances E. Willard exemplified [the] racial tensions [of the time]. Wells wanted white reformers such as Willard to condemn without equivocation not only lynching but also the false charges of rape that fueled vigilantism. Yet when Willard addressed the WTCU in 1893, she reinforced the southern rape myth by claiming that intoxicated black men posed a threat to the safety of womanhood… At the organization’s 1984 conference, Ida B. Wells and sympathetic WCTU members failed in their effort to pass a strong anti-lynching resolution. Instead, the WTCU condemned the lawless acts but at the same time incorporated the southern defensive rhetoric by referring to “the unspeakable outrages which have so often provoked such lawlessness.”

Like most white women reformers of the time, Willard was unable or unwilling to take significant account in her rhetoric or analysis for the obvious role that racism played in both rape and vigilantism. At best, Willard equated the social problems of rape and lynching by blaming them both on drunkenness. Meanwhile black women knew that it was crucial to distinguish white supremacy from alcoholism. Freedman speculates that the divergent approaches toward sexual violence of white temperance advocates and black club women delayed an interracial anti-lynching movement from taking shape for another generation.

¤

By presenting the conflicts that prevented progress as well as the limitations of the movements that managed to chip away at the legal definition of rape over time, Freedman’s narrative tells us as much about feminism’s failings as its successes. Throughout history there has been no cohesive anti-rape movement, and Redefining Rape makes the reasons for that clear. By cataloguing the many disparate critiques of the popular definitions of rape over time, Freedman has placed a largely invisible history of anti-rape reform in the broader context of ongoing struggles for social equality in the United States.

Though she primarily focuses on the 1870s through the 1930s, Freedman closes her book by touching on the social and political changes since the mid-20th century that have continued to reshape the definition of rape into the familiar but still fluid one we have today. The civil rights movement and second-wave feminism expanded and furthered the race- and gender-based criticisms of American society made by their predecessors. Legal reforms like the 1994 Violence Against Women Act have expanded legal remedies for sexual violence considerably. Anti-rape theorists and activists from Susan Brownmiller to Andrea Smith have dramatically expanded the framework for thinking about rape as a cultural and criminal issue in recent decades. However, as Freedman points out, today’s response to sexual violence is still plagued with problems like racial profiling, victim blaming, underreporting, and silencing.

Freedman cites both the Rape is Rape campaign and SlutWalk briefly in her closing chapter as examples of contemporary anti-rape efforts. She doesn’t, however, mention the many powerful racial critiques that SlutWalk generated, even though they refer to so much of what was elaborated in the book. It’s clear that much progress has been made in the ongoing efforts against sexual violence — preliminary crime data for 2013 shows an increase in the number of rapes counted by many police departments last year thanks to the FBI’s new definition: the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim. But the high note that Freedman ends on may obscure the reality of persistent racism in feminist activist spaces. As the recent trending Twitter hashtag #solidarityisforwhitewomen and the conversations it inspired have demonstrated, the feminist movement is still influenced by the forces of white supremacy discussed throughout Redefining Rape.

Still, for anyone interested in undertaking intersectional, anti-racist feminist action against sexual violence, Redefining Rape has a lot to offer. Freedman does a great service in providing a historical account of where we came from, how we got here, and lessons for how to do it better in the future.